Provision on Pharmaceutical Crimes Declared Constitutional

Chief Justice Anwar Usman reading out the verdict of the judicial review of Article 196 of Law No. 36 of 2009 on Health, Tuesday (12/20/2022). Photo by MKRI/Panji.

Tuesday, December 20, 2022 | 20:40 WIB

JAKARTA (MKRI) — The provision on the legal punishment against pharmaceutical crimes in Article 196 of Law No. 36 of 2009 on Health was declared not unconstitutional in the Constitutional Court Decision No. 106/PUU-XX/2022, the case of which petitioned by advocate Rega Felix.

Extraordinary crimes, the Court asserted, are not only ones that lead to deaths but also those that destroy public facilities, worsen the economy, and disrupt national security. An incident is declared extraordinary if there are the spread of an infectious disease that did not exist or was not previously known and the continuous increase of illness/death for three consecutive periods according to the type of disease. Therefore, Article 196 of the Health Law, which the Petitioner believe to be in violation of Article 28A, Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution, mentions a principal difference between an extraordinary crime and an extraordinary incident. “Moreover, the Health Quarantine Law has regulated the types of health emergencies and the mechanisms for dealing with them,” said Constitutional Justice Enny Nurbaningsih at a ruling hearing on Tuesday, December 20, 2022.

The Court did not find convincing evidence of such an extraordinary incident, Justice Enny said. In relation to the concrete case the Petitioner mentioned, the Government has made several efforts, including ordering the recall of all cough syrups from the market, issuing the Decree of the Director-General of Health Services No. HK.02.02/I/3305/2022 on Clinical Procedure and Management of Atypical Progressive Acute Kidney Injury in Children in Healthcare Facilities. In addition, the Ministry of Health also issued Circular Letter (SE) No. SR.01.05/III/3461/2022 on the Obligation of Epidemiological Investigation and Reporting of Cases of Atypical Progressive Acute Kidney Injury in Children, addressed to all health offices, health service facilities, and medical professional organizations, so the issue are slowly starting to be resolved.

Improving Oversight

The Court requested that the Government continue improving oversight to prevent anyone who does not have the expertise and authority from procuring, storing, processing, promoting, and distributing medicine and medicinal substances without meeting pharmaceutical standards. Because the law has determined what can be declared extraordinary crimes, any future expansion of extraordinary crimes to include extraordinary events related to health, which the Petitioner wished, can only be done through in-depth study or research involving relevant parties, as this is under the jurisdiction of the legislatures.

“Thus, the Court cannot immediately include the type of crime including, in this case, pharmaceutical crimes, in the category of extraordinary crimes,” Justice Enny explained.

Also read:

Light Punishment for Pharmaceuticals Crime in Health Law Challenged

Petitioner Questioning Pharmaceutical Crimes Strengthens Background

Regulation Evaluation and Implementation of Distribution Permits

The leniency of criminal punishment in Article 196 of the Health Law, the Court asserted, is related to strataat, which is an integral part that cannot be separated from the qualification of criminal offenses. It is impossible for the qualification of criminal offenses to be left to legislatures to decide, while that for criminal punishment be left to the Constitutional Court. Criminal punishment, Justice Enny said, is reflective of the quality of the offender’s acti=, which becomes a parameter for imposing the weight of the sentence, which is the legislatures’ jurisdiction.

The Court referred to Decision No. 46/PUU-XIV/2016, in which it asserted that the Constitutional Court cannot grant any petition requesting the criminalization or decriminalization of certain acts, since it would limit a person’s rights and freedoms as protected by Article 28J paragraph (2) of the 1945 Constitution. Such a decision would be the exclusive authority of the legislatures.

The Petitioner’s concern of children falling victim to the incident, the Court asserted, does not require a resolution by increasing the severity of criminal punishment, which ends in the hands of the law enforcement. The Court reminded the Petitioner that epidemics due to alleged chemical substance abuse in pharmaceutical products might continue to emerge. Therefore, periodic evaluation of regulations distribution permits and supervision of chemical products in food, beverages, and pharmaceutical preparations are necessary in accordance with statutory provisions, so that people feel safe when using such products.

“Based on those legal considerations, to the Court is of the opinion that the Petitioner’s argument against Article 196 of the Health Law has not raised concern of protection from fear and the right to life as guaranteed by Article 28A, Article 28B paragraph (2), Article 28G paragraph (1) ), and Article 28I paragraph (1) of the 1945 Constitution. Thus, the Petitioner’s argument was groundless according to law,” said Justice Enny.

The Petitioner previously asserted that some pharmaceutical preparations available in the community have resulted in numerous deaths, and he stressed that the production of such preparations should be categorized as a crime. The action has had multidimensional impacts involving humanity and non-derogable human rights as set forth in Article 28I paragraph (1) of the 1945 Constitution.

Therefore, he asserted, the Law should be a means of preventing undesirable events in society, but the a quo article only imposes light punishments so the perpetrators of crimes relating to pharmaceutical preparations are not afraid to commit their actions, even though the impact of their actions is massive and injures humanity. Extraordinary fear has spread in society and affected the Petitioner and his family, given that those common medicines have caused the death of so many children and have now been withdrawn from circulation despite it being essential.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 12/22/2022 15:10 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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